SERGI v THE DIRECTOR OF PUBLIC PROSECUTIONS

Court of Appeal (NSW)|1991-09-10|Before: Studdert J, Kirby P

SERGI v THE DIRECTOR OF PUBLIC PROSECUTIONS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and HANDLEY JJA 10 September 1991, 10 September 1991

CRIMINAL LAW and PROCEDURE - claimant committed for trial on "knowingly take part" in cultivation of marijuana - claims magistrate fails to uphold no evidence argument and properly to exercise discretions under Justices Act 1902 s41(2), s41(6) - seeks judicial review by Supreme Court - Studdert J refused relief

criminal trial about to commence in Albury urgent application to Court of Appeal for stay and other orders to prevent commencement of the criminal trial - held: (dismissing the application) (1) Supervisory and appellate courts should reserve their inference in criminal trials to clear cases and should avoid the dangers of fragmentation of the criminal process. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied; Cain v Glass (No 2) (1985) 3 NSWLR 230 (CA) referred to; (2) As the DPP had found the bill of indictment, quashing the committal and ordering it recommencement would, as such, be futile. Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520, 527 applied; (3) The claimant was entitled to press his claim for relief before the trial judge and, if still necessary, on appeal against conviction, in the Court of Criminal Appeal. CRIMINAL LAW PROCEDURE - prohibited drugs - knowingly take part in cultivation of - meaning of "take part" statutory definition - whether applies to person who secures cheques for payment of rent to owner of land on which drugs grown - whether facts fall within the section - held: Matter should be determined by trial judge upon full facts and not by the Court of Appeal as an incident to the application for a stay or other orders.

Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125 (CA) referred to. WORDS and PHRASES - "take part".

Supreme Court Act 1970, s17, s65, s69, (Third Schedule).

Kirby P This motion invokes the jurisdiction of the Court of Appeal, in effect, to provide a stay of criminal proceedings currently before Dunford DCJ in the Criminal Jurisdiction of the District Court sitting in Albury. Those proceedings were first listed to commence in Albury yesterday. To allow this Court to dispose of the motion, his Honour delayed the commencement of a criminal trial until 2 pm today when the bill of indictment was to be presented and the jury empanelled to try the claimant and certain other accused persons.

This morning, following argument, the Court ordered that the motion for a stay and other relief be dismissed. It also ordered that the costs of the motion be costs in the foreshadowed appeal from orders earlier made by Studdert J. I now proceed to state my reasons for the orders so made.

Mr Francesco Sergi (the claimant) is alleged by the Director of Public Prosecutions (the first opponent) (the DPP) to have knowingly taken part in the cultivation of a number of prohibited plants, namely marijuana, of not less than

the applicable commercial quantity. The DPP relies for the prosecution upon s23(2) of the Drug Misuse and Trafficking Act 1985 (the Act). The offence is alleged to have taken place between 1 October and 12 December 1989.

The claimant was interviewed by the police in relation to the matter in February 1990. An unsigned record of interview was taken from him. However, he was not then charged with an offence.

In May and June 1990 four persons, Messrs Barbaro, Pangallo, Romeo and Rovere were charged with like offences allegedly arising out of the common activities of those accused. The claimant was not charged at that time.

The four accused were duly committed for trial. A pre-trial conference involving them was conducted by the trial judge in July 1991. On 21 April 1991 the claimant was arrested and subsequently charged. The charge brought against him was brought under s23(2)(a) of the Act. Between 19 and 21 August 1991 he was the subject of a committal hearing. The committal took place at the Griffith Local Court before.Mr Kevin Flack (the second opponent), a Magistrate. On the last mentioned day, the second opponent rejected various contentions put to him by counsel for the claimant. The most important of these was that there was no evidence in the prosecution case to sustain the charge which the claimant faced. This submission was based upon a construction of the language of s6 of the Act. By that section a definition was provided of when a person "takes part" in the cultivation of a prohibited plant. It was the claimant's case that, on the prosecution evidence, he fell outside the provisions of that section. The claimant denies any criminality.

It is said that the only evidence adduced by the prosecution in the committal was that the claimant took certain cash given to him and, with that cash and a small contribution of his own (later repaid), he obtained two bank cheques of $7,000 and $8,000 respectively. These were paid as rent for certain land owned by a Mr Tavona. He was the owner of the property upon which it is alleged that the prohibited plants were thereafter cultivated. Mr Tavona has not been charged with an offence. Nor has the party providing the cash been charged. In these circumstances, the claimant's case was that he did not fall within the language of s6. He sought an order, in effect, that the committal so that he could be released from the criminal prosecution upon the basis of his submissions of law.

"For the purposes of this Act and the regulations, a person takes part in the cultivation and supply of a prohibited plant...

(a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation...

(b) the person provides or arranges finance for any such step in that process; or

(c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates.

If the only evidence of the prosecution is that stated above, it seems that the claimant will not be alleged himself to have been involved in the "process of cultivation" (para (a)). Nor did he "provide the premises", at least in the ordinary sense of that term, and at least any more than Mr Tavona did (para (c)). The issue at the committal was thus whether he fell within para (b). That para refers back to para (a) by its reference to "that process". One reading of paragraph (b) would suggest that it may not extend to conduct removed from the process of cultivation

URJ SERGI v THE DIRECTOR OF PUBLIC PROSECUTIONS (Kirby P) 3

such as securing cheques for payment of the rent of land. That was the submission which the second opponent rejected in committing the claimant for trial. To reach the conclusion to commit the claimant, the second opponent was obliged to exercise the discretions as provided by s41(2) and s41(6) of the Justices Act 1902. In essence, the claimant contended that the exercise of those discretions in the Local Court miscarried for errors of law and of fact finding. The claimant's aim in the Supreme Court has been to secure orders quashing his committal for trial and protective orders, in the nature of a stay or otherwise, to defend the utility of the proceedings in this Court directed at the challenge to the committal.

Unsuccessful application for a separate trial The order of committal was not the end of this saga. An urgent application was made by the solicitor for the claimant to the Director of Public Prosecutions that the claimant's trial be conducted separately from that of the other four accused. The claimant had a number of arguments to support this application. These included the very late decision, after a long delay, to join him in the long planned trial of the other four accused and the "indecent haste" with which, it was said, the case against him had been prosecuted - being little more than three weeks from committal to trial.

A request to agree to a separate trial was directed to the DPP on 26 August 1991. However, on that day the DPP found a bill of indictment against the claimant. On 27 August 1991 the DPP refused to agree to a separate trial. A notice of motion was then filed in the District Court on 28 August 1991 requesting an order for the separate trial. That motion was returned before Dunford DCJ, as the trial judge, on 2 September 1991. His Honour refused to order a separate trial. He also refused to grant an application for an adjournment of the trial.

The claimant was then obliged to make a choice. Either he had to face the prospect of a joint trial with the four co-accused, estimated to be of eight weeks' duration before Dunford DCJ and a jury, or he had to seek some relief in the Supreme Court against the commencement of that trial. One procedure which was available to him was to seek leave of the Court of Criminal Appeal to appeal against Dunford DCJ's interlocutory orders refusing the order for a separate trial and refusing an adjournment. See Criminal Appeal Act 1912, sSF. The case books are full of instruction expressing the caution with which interlocutory orders generally, and such orders in a criminal trial in particular, are disturbed by appellate courts. Not surprisingly, therefore, this line of attack was abandoned.

That left the other procedure, which is the one which the claimant invoked. On 3 September 1991, by motion and later by summons, he sought judicial review in the Supreme Court of the order of the Magistrate committing him for trial. Those proceedings came before Studdert J. His Honour expedited the hearing. He heard the matter on 6 September 1991. On 9 September 1991, his Honour delivered reasons for the order which he then made dismissing the claimant's summons.

From that order, the claimant has indicated an intention to appeal to this Court. No notice of appeal has yet been filed. However, by order made yesterday, the Court listed today what was, in effect, a motion for a stay and other orders in support of the proposed appeal. It was argument upon that motion which the Court heard this morning.

The wide powers of this Court to defend its process by way of a stay and other orders is well established. They are derived from the Supreme Court Act 1970 and from the inherent jurisdiction of the Court of Appeal as part of the Supreme

Court. See Alexander and Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) and Anor (1985) 2 NSWLR 685, 690 (CA). The categories of cases in which the relief will be provided are not closed. Cf Tringali v Stewardson Stubbs and Collett Ltd (1966) 66 SR (NSW) 335, 344 (CA). In the context of stays to defend proposed applications for special leave to appeal to the High court of Australia, the Court has drawn a distinction between cases which involve the criminal or other public law and cases of a purely private and civil character. Contrast John Fairfax and Sons Ltd v Kelly (No 2), (1987) 8 NSWLR 510 (CA); Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125, 132 (CA). The distinction rests upon the public interest in the due administration of the criminal law which the Court will be vigilant to defend.

The claimant argued that Studdert J had effectively abdicated the responsibility of the Supreme Court to provide judicial review. The jurisdiction of the Court which the claimant invoked was that existing under s65 and s69 of the Supreme Court Act, s134 of the Justices Act and the inherent jurisdiction. No argument was raised before Studdert J to the effect that the Supreme Court was deprived of jurisdiction in the case by the combined operation of s17(1) of the Supreme Court Act and the Third Schedule to that Act. I will assume, as Studdert J did, that the Court has jurisdiction to grant judicial review and jurisdiction to defend its utility by a stay or other order. No argument to the contrary was put by counsel for the DPP.

Granted jurisdiction, should it be exercised in this case? I think not. The reasons which led me to the orders made earlier today were three: 1. Courts of high authority have repeatedly stressed the great circumspection which should be exercised in the provision of relief which would have the effect of disturbing the conduct of a criminal trial. There is no doubt that this Court, as a supervisory court, has a wide jurisdiction to grant such relief where justice requires it. See Barton v The Queen (1980) 147 CLR 75, 96. However it is a jurisdiction to be sparingly exercised. Lamb v Moss (1983) 49 ALR 533, 545; Bacon v Rose (1972) 2 NSWLR 793, 797; Cain v Glass (No 2) (1985) 3 NSWLR 230, CA. In part, this restraint arises out of an historical respect for the jury which takes charge of the accused once the trial commences. In part, it derives from a recognition by appellate courts of the difficulties attending the conduct of complex criminal trials. In part, it follows from the large provisions to challenge a conviction on appeal if at the end of a trial, the accused is convicted and still complains about an interlocutory ruling. In part, it is based upon a recognition of the dangers of the " fragmentation in the criminal process. This last consideration was mentioned most recently by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 328 and 329. It is essential that more than lip service be paid to these injunctions of restraint. They apply to this case.

Courts have also taken pains, of late, to stress the authority of the DPP to find a bill of indictment and the discretion which is there involved separate from the (usually anterior) exercise of discretion to commit an accused person for trial. See Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520, 527 (CCA). In the present case, the DPP has now found a bill. The order of the magistrate, although historically anterior, was not a necessary pre-condition or a legal foundation for the DPP's action. See R v Leslie Robert Butler, CCA, unreported, 16 August 1991 (per Gleeson CJ, P 4). That action stands on its own footing. The decision of the magistrate committing the claimant for trial has, thus, now been overtaken by the DPP's decision. Any order directed to the

URJ SERGI v THE DIRECTOR OF PUBLIC PROSECUTIONS (Kirby P) 5

magistrate to reopen the committal proceedings could not, of itself, affect the DPP's exercise of discretion to find a bill. To the contrary, the magistrate would be entitled, unless the DPP elected to withdraw and revoke the bill so found, to regard the reopened committal as entirely futile. A later finding by the magistrate, on a reconsideration of s6 properly construed, that there was no evidence to warrant committing the claimant for trial, would leave the DPP's bill of indictment completely unaffected. The DPP has made it clear to this Court that he intends to present and prosecute his bill when the trial opens. Courts will not usually review the decision of a prosecutor to find a bill, at least in circumstances such as the present. See Grassby v The Queen (1989) 168 CLR 1, 7; R v Woolcott Forbes (1944) 44 SR (NSW) 333, 338 (FC). Therefore, the relief sought by the claimant in this Court would not provide a useful basis for any order having the practical effect which the claimant seeks, namely the delay of the commencement of his trial.

The relief sought is not imperative or essential to the defence of the claimant's rights at law. If he is refused relief, it is true that he is submitted to the great inconvenience and cost of a lengthy criminal trial. The Court was told that the claimant is not provided with legal aid. Of course, if this point is successful he may have certain rights to recover some of his legal costs. See Latoudis v Casey (1991) 65 ALJR 151; 97 AIR 45 (HC). Nevertheless, if he has a simple legal defence to the charge against him, it is understandable that he would wish to have that defence determined as quickly as possible and in accordance with law. Costs are not the only burden of a criminal trial. However, the facts relied upon by the DPP are still somewhat fluid. Those proved at the committal may not necessarily be the final word of the prosecution at the trial. Even in civil proceedings where further facts remain to be proved, this Court would very rarely provide interlocutory relief upon an argument that the applicant for relief has a strong case in law. It would normally conserve its relief to the circumstances where all of the relevant facts had been proved in the court of trial. Experience teaches that courts are usually then in a better position to apply to the facts, as found, the law, as properly interpreted. Such restraint, for reasons already stated, applies with even greater force in the case of the suggested interruption of criminal proceedings. The DPP having found a bill on facts known to him, it is appropriate to allow him to present those facts for a ruling, in the first instance by the judge of trial and if so permitted for a verdict of the jury.

Desirability of early resolution of argument of law

I wish to make it clear that nothing said by Studdert J or by me should prevent Dunford DCJ from dealing with the legal arguments of the claimant at the earliest convenient moment in the trial. That may be immediately after the opening, when the prosecutor states the facts which he will seek to prove. It may be when the Crown, in the course of the trial, acknowledges that it has adduced all the evidence at its disposal against the claimant. At the latest, it will be at the end of the Crown's case.

If the claimant is then still disaffected by any such ruling made by his Honour he has other remedies. If the verdict of the jury goes against him, he can always appeal to the Court of Criminal appeal. It should be left to Dunford DCJ to adopt an appropriate procedure to allow the matter argued before us under s6 to be raised and determined as quickly in the trial as justice permits.

These are the reasons which led me to hold back from providing relief by way of a stay or other order. Formally, that is the only matter which is disposed of by the Court today. The appeal, once filed, will take its ordinary place in the list.

However, it is possible that the events of the trial will now overtake the appeal and that the rights of the claimant will be determined elsewhere in the normal process of the criminal law.

In parting from this case, I record the appreciation of the Court to Dunford DCJ and to the jury in waiting for the delay in the commencement of the trial to permit this Court to have the opportunity to hear and determine the claimant's motion as the law provides.

Meagher JA I agree with the President. Since an indictment has been presented and our jurisdiction is therefore doubtful, since the facts may or may not come within s6 of the Drug Misuse and Trafficking Act since in any event the precise facts are not yet known, since we are traditionally reluctant to interfere in the ordinary processes of the criminal law, and since the point on which the claimant wishes to rely is available to him at the trial at any event, I am of the opinion that the orders proposed by the President should be made.

Handley JA I agree with the reasons for judgment of the President. I would only add that s6 poses difficulties of construction but these must be resolved by the trial judge at an appropriate stage during the trial of the claimant and others. It would be quite inappropriate for this Court to undertake the task of construing the section on assumed facts or on the facts previously alleged in the committal proceedings.

The orders of the Court are that the motion is dismissed and costs of the motion are to be costs in the appeal.

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